America's legal system

Divide and rule

FOR most people not directly caught up in the maelstrom swirling around the appointment of new justices to the Supreme Court, the whole process can seem a trifle strange. The appointments of top judges in other countries barely make the news. In America they have often been a political circus. After years of respite, this peculiar ritual has started again as the Senate began its confirmation hearings this week on John Roberts, George Bush's choice to replace the late William Rehnquist as chief justice of the Supreme Court.

With so many other problems piling up, Mr Bush seems to have little appetite for this battle. His choice of Mr Roberts, a smooth and colourless conservative, seems designed to avoid the partisan brawl which Supreme Court appointments have so often provoked. But even if he succeeds this time, Mr Bush has another seat on the court to fill, which seems bound to produce a bitter fight. And whether Mr Bush likes it or not, he may have to make one or two more Supreme Court appointments before leaving office; a number of justices are old or ailing.

Why all the fuss? Cass Sunstein's new book is perfectly timed to answer that question, and to make comprehensible the political theatricals surrounding Supreme Court confirmations. This is no easy task. In the past, all sides have accused their opponents of exactly the same thing: trying to hijack the country by packing the court with “activist” ideologues who push their own agenda rather than simply interpret the law. All pledge to protect the American constitution from the dastardly machinations of others.

Mr Sunstein, a professor at the University of Chicago and one of America's leading commentators on legal topics, offers a concise and illuminating guide through this confusing thicket of claim and counter-claim. What he makes clear is that behind the facade of agreement about basic principles lie deep disagreements about the meaning of the constitution, the role of the Supreme Court and the direction in which America itself should be moving.

Mr Sunstein divides the contestants into three categories: perfectionists, minimalists and fundamentalists. He terms himself a minimalist, believing that the court should deal with individual cases as cautiously as possible, and not embrace whole-heartedly any single theory of constitutional interpretation. Minimalists are found among liberals and conservatives, but both types are pragmatic rather than ideological. Sandra Day O'Connor, the court's retiring justice, is a typical conservative example, as are the court's four centrist, non-conservative justices.

Perfectionists are epitomised by the liberal judges who dominated the Supreme Court under Earl Warren in the 1950s and 1960s when it delivered a series of landmark rulings on racial segregation, voting rights, criminal defendants, free speech and privacy. For perfectionists, the sweeping and vague terms of the constitution require the Supreme Court to use it merely as a framework for grappling with contemporary issues. Within this broad framework, the court must come up with the best solution at the time in an effort to “perfect” America. Under these terms, many American liberals are perfectionists, but none of the court's current sitting justices is.

At the other extreme are fundamentalists, says Mr Sunstein. They approach the constitution as religious fundamentalists approach scripture, believing that the constitution means precisely what it meant when it went into effect in 1789, and that the court's job is to apply only this meaning. Mr Bush's two favourite justices on the court, Antonin Scalia and Clarence Thomas, are fundamentalists.

For the past two decades, constitutional fundamentalism has evolved into a large movement with advocates in law schools, in think-tanks and on the bench of lower federal courts. Its aim is revolutionary: to restore what it claims is the “lost constitution” or the “constitution in exile”. This is the “original” constitution supposedly intended by the framers, which fundamentalists claim was still in force when a conservative court blocked Franklin Roosevelt's New-Deal legislation in the 1930s. This proved a turning point. Roosevelt tried and failed to pack the court with new members, but the court subsequently performed an abrupt U-turn anyway and allowed an unprecedented expansion of federal power, a move which many conservatives have never accepted.

Mr Sunstein argues that both perfectionists and fundamentalists are mistaken in the same way, advocating a form of judicial activism that is illegitimate, prone to error and anti-democratic. But fundamentalists are his real target. Warren-style liberal perfectionists hardly exist on the federal bench any longer.

However, fundamentalists, he argues, are a genuine threat to good governance because they have so little respect for the Supreme Court's own precedents or for Congress. If they ever obtain a court majority, he fears, they would sweep away many effective laws, on everything from civil rights to environmental protection. America's modern regulatory state would be dismantled. Many widely accepted boundaries, such as that between religion and government, could also disappear.

Mr Sunstein may seem alarmist, but most of these positions have been advocated for years by supporters of the “lost constitution”. He opposes fundamentalists not only because of the way they want to remake America, but also because he disputes their reading of history. There was no single “original intent” behind the constitution among its drafters or ratifiers. It was a much contested document; and the idea that it can only be applied as those in the 18th century would have interpreted it seems a bizarre idea.

Moreover, through careful analysis, Mr Sunstein shows that fundamentalists have been wildly inconsistent in applying constitutional history, referring to it only when it fits their policy goals. Too often, he says, their interpretation neatly fits only the agenda of the extreme edges of the Republican Party's right wing rather than any reasonable view of history. Fundamentalist judges are “radicals in robes”, he claims, not neutral, fair-minded arbiters.

Thus, as Mr Sunstein has written elsewhere, the Senate confirmation hearings should not waste time on seeking Mr Roberts's views on abortion or any other single litmus test, but should instead aim at discovering whether he is one of these judicial radicals. Why do such hearings so often degenerate into a political battle? Mr Sunstein's answer is simple: because so much is at stake.